The sanctions against Russia just announced by the EU and the US are widely reported to be the harshest since the end of the Cold War. The package includes cutting off Russia’s state-owned banks from international capital markets, banning any trade in arms or transactions with any company involved in arms production and banning exports of technology for Russia’s oil industry.
Russia’s response has been defiant. Foreign minister Sergei Lawrov said: “I assure you, we will overcome any difficulties that may arise in certain areas of the economy, and maybe we will become more independent and more confident in our own strength”.
But what are these sanctions? In order to understand how they function and whether they are likely to be effective, it is crucial to clarify first some of the terms used.
Are they legal?
“Sanction” is not, strictly speaking, a “term of art” – or legal classification – in international law. It is widely used in the media as a shorthand. A sanction denotes the reaction of the legal system to an illegal act: it is the consequence of a violation of a legal rule. But sanctions are rather more complicated in international law – a decentralised system that, in general terms, lacks any central authority to determine the existence of violations and to impose the consequent sanctions.
This means that states (and other actors such as the EU) must determine for themselves, in the first instance, if another actor – Russia, for example – has violated international law, and proceed to impose sanctions against it.
These sanctions are actually violations of international law, which are legally justified because they are taken in response to a previous violation by the target state. To give an example, if the EU or the US stop trading with Russia in certain goods which they are obliged by a trade agreement to trade in, they are technically violating international law against Russia.
But this violation can be justified if the EU or the US act in response to a prior violation of international law by Russia – for example, the violation of the obligation not to interfere in the domestic affairs of another state by arming Ukrainian separatists, or the obligation not to use force in international relations by sending troops into Ukraine. In the vernacular of international law, these sanctions are called “countermeasures” because of their tit-for-tat nature.
There is of course some degree of centralisation in the international legal system. The United Nations has the power to impose sanctions as well.
The UN Security Council, which has primary responsibility over the maintenance and restoration of international peace and security, has been given the power to impose centralised sanctions against states or in situations that constitute a “threat to international peace and security”. In short, the UN may sanction not all violations of international law, but only those that constitute a threat to the peace (which is a violation of international law in itself).
It is usually far more effective for the Security Council to impose such centralised sanctions, as all UN member states are under an obligation to respect and enforce them. However, in situations where one or more of the the P5 (permanent members of the Security Council – US, UK, France, Russia, and China) are implicated, the council will not be able to act, as the P5 have the power to block any Security Council decision. In such cases, decentralised sanctions are the only option.
Neither UN sanctions nor decentralised countermeasures, however, are meant to be punitive in nature. They do not aim to “punish” the recalcitrant state, but only to put pressure on it as an inducement for ceasing its internationally wrongful conduct. The aim of centralised or decentralised sanctions, thus, is the return to legality and normality.
Will they work?
The EU and the US – along with a number of other countries – have imposed sanctions against Russia since the beginning of the crisis in Ukraine. These sanctions have gradually escalated. But what are they, and how effective will they be?
Apart from comprehensive sanctions, such as a complete embargo, which is considered too much of a blunt instrument, sanctions can be targeted in two ways: they may target specific goods or services that are crucial to the economy of the target country and/or are considered to be contributing to the conflict. Or they may target specific individuals or legal entities of the target country that are considered to be heavily implicated in the conflict.
Such targeted sanctions are considered to exert maximum pressure on the leadership of the target state while safeguarding, as much as possible, the rights of the civilian population.
The sanctions the EU has agreed to impose against Russia are targeted in both of these ways: the sale of arms to Russia is blocked through an arms embargo, and so is the sale in equipment crucial for the Russian oil industry. Meanwhile sanctions also seek to block the access of certain state-owned Russian banks to global financial markets. At the same time, sanctions are targeted against individuals in the Russian leadership who are are hit with travel bans and asset freezes. These people are prevented from travelling into the EU (or into any country that has imposed this sanction). Nor can they make use of any funds currently deposited in EU banks.
Sanctions, especially collective sanctions imposed by the UN, have had their successes in the past: they played an important role in the collapse of South Africa’s apartheid regime while in Iraq, despite imposing considerable hardship on ordinary people, they did succeed in eliminating Saddam Hussein’s capability to wage chemical and biological warfare. The pressure of sanctions has also brought Iran back to the negotiating table over the development of its nuclear programme.
Decentralised sanctions may not be as effective, as they are not enforced by all the UN member states – only by the state or international organisation that imposes them. But they are the only option when the Security Council is prevented from acting – and the concerted imposition by a number of major economies has the potential of exerting some significant pressure on the target.
But, ultimately, their effectiveness will only be able to be assessed on the basis of their outcome: that is, on whether they will induce Russia to cease its support for the Ukrainian separatists and allow access and investigation at the crash site of MH 17.